TABLE OF AUTHORITIES................................................................................................. ii

STATEMENT OF INTEREST............................................................................................ 1

STATEMENT OF THE ISSUES......................................................................................... 2

STATEMENT OF THE CASE............................................................................................ 2

A. Statement of the Facts........................................................................................... 2

B. District Court’s Decision........................................................................................ 5

ARGUMENT............................................................................................................................. 6

I......... Sexual Orientation Discrimination is Cognizable as Sex Discrimination Under Title VII.......................................................................................................................... 6

A. Sexual orientation discrimination necessarily involves sex stereotyping, in violation of Title VII............................................................................. 7

B. Sexual orientation discrimination constitutes associational discrimination that violates Title VII................................................................................... 14

C. Sexual orientation discrimination is, by definition, discrimination “because of … sex,” in violation of Title VII............................................................ 17

D. Williamson is no longer good law and does not bind this Court. 21

II. The District Court Erred in Dismissing Terry’s Retaliation Claim on the Ground that Her Complaint of Sexual Orientation Discrimination was Not Protected Conduct. 23

CONCLUSION....................................................................................................................... 26

TABLE OF AUTHORITIES

Page(s)

Cases

Bakhtiari v. Lutz,

..... 507 F.3d 1132, 1137 (8th Cir. 2007).............................................................................. 25

Baldwin v. Foxx,

..... EEOC Appeal No. 0120133080, 2015 WL 4397641 (EEOC July 15, 2015) 17, 18, 19, 24

Boutillier v. Hartford Pub. Schs.,

..... --- F. Supp. 3d ---, 2016 WL 6818348 (D. Conn. 2016)............................. 17, 19, 20

Brannum v. Mo. Dep’t of Corr.,

..... 518 F.3d 542 (8th Cir. 2008)........................................................................................... 24

Buettner v. Arch Coal Sales Co.,

..... 216 F.3d 707 (8th Cir. 2000)........................................................................................... 24

Centola v. Potter,

..... 183 F. Supp. 2d 403 (D. Mass. 2002)..................................................................... 11, 18

City of Timber Lake v. Cheyenne River Sioux Tribe,

..... 10 F.3d 554 (8th Cir. 1993)......................................................................................... 7, 21

Connecticut v. Teal,

..... 457 U.S. 440 (1982)........................................................................................................... 20

Dawson v. Entek Int’l,

..... 639 F.3d 928 (9th Cir. 2011)........................................................................................... 25

Deffenbaugh-Williams v. Wal-Mart Stores,

..... 156 F.3d 581 (5th Cir. 1998), vacated in part on other grounds in Deffenbaugh-Williams v. Wal-Mart Stores, Inc., 182 F.3d 333 (5th Cir. 1999) (en banc).................................. 15

DeSantis v. Pac. Tel. & Tel. Co.,

..... 608 F.2d 327 (9th Cir. 1979)........................................................................................... 21

Doe v. City of Belleville,

..... 119 F.3d 563 (7th Cir. 1997), vacated and remanded on other grounds, 523 U.S. 1001 (1998)....................................................................................................................................... 9

EEOC v. Boh Bros. Constr. Co.,

..... 731 F.3d 444 (5th Cir. 2013) (en banc).................................................................... 9, 12

EEOC v. Scott Med. Health Ctr., P.C.,

..... --- F. Supp. 3d ---, 2016 WL 6569233 (W.D. Pa. 2016)........................................... 10

Evans v. Ga. Reg’l Hosp.,

..... --- F.3d ---, 2017 WL 943925 (11th Cir. 2017)........................................................... 23

Floyd v. Amite Cty. Sch. Dist.,

..... 581 F.3d 244 (5th Cir. 2009)........................................................................................... 15

Glenn v. Brumby,

..... 663 F.3d 1312 (11th Cir. 2011).................................................................................. 9, 22

Hall v. BNSF Railway Co.,

..... 2014 WL 4719007 (W.D. Wash. Sept. 22, 2014)........................................................ 19

Hall v. Gus Constr. Co.,

..... 842 F.2d 1010 (8th Cir. 1988)......................................................................................... 14

Heller v. Columbia Edgewater Country Club,

..... 195 F. Supp. 2d 1212 (D. Or. 2002)....................................................................... 11, 19

Hively v. Ivy Tech. Cmty. Coll.,

..... 830 F.3d 698 (7th Cir. 2016), petition for reh’g en banc granted and opinion vacated, 2016 WL 6768628 (Oct. 11, 2016).................................................................................... 11, 16

Holcomb v. Iona Coll.,

..... 521 F.3d 130 (2d Cir. 2008)............................................................................................. 15

Horace v. City of Pontiac,

..... 624 F.2d 765 (6th Cir. 1980)........................................................................................... 16

Isaac v. Felder Servs., LLC,

..... 143 F. Supp. 3d 1190 (M.D. Ala. 2015)........................................................................ 18

Latta v. Otter,

..... 771 F.3d 456 (9th Cir. 2014)........................................................................................... 12

L.A. Dep’t of Water & Power v. Manhart,

..... 435 U.S. 702 (1978)....................................................................................................... 8, 19

Lewis v. Heartland Inns of Am., L.L.C.,

..... 591 F.3d 1033 (8th Cr. 2010)...................................................................................... 9, 13

McGinest v. GTE Serv. Corp.,

..... 360 F.3d 1103 (9th Cir. 2004)......................................................................................... 15

Meritor Sav. Bank, FSB v. Vinson,

..... 477 U.S. 57 (1986).............................................................................................................. 12

Newport News Shipbuilding & Dry Dock Co. v. EEOC,

..... 462 U.S. 669 (1983)..................................................................................................... 19, 20

Nichols v. Azteca Rest. Enters., Inc.,

..... 256 F.3d 864 (9th Cir. 2001)....................................................................................... 9, 21

Oncale v. Sundowner Offshore Oil Servs., Inc.,

..... 523 U.S. 75 (1998).................................................................................................. 6, 12, 24

Parr v. Woodmen of the World Life Ins. Co.,

..... 791 F.2d 888 (11th Cir. 1986)......................................................................................... 14

Patterson v. Tenet Healthcare, Inc.,

..... 113 F.3d 832 (8th Cir. 1997)....................................................................................... 7, 21

Price Waterhouse v. Hopkins,
490 U.S. 228 (1989)..................................................................................................... passim

Pye v. Nu Aire, Inc.,

..... 641 F.3d 1011 (8th Cir. 2011)......................................................................................... 24

Quick v. Donaldson Co.,

..... 90 F.3d 1372 (8th Cir. 1996)........................................................................................... 13

Rowe v. Hussmann Corp.,

..... 381 F.3d 775 (8th Cir. 2004)........................................................................................... 14

Schmedding v. Tnemec Co.,

..... 187 F.3d 862 (8th Cir. 1999)........................................................................................... 22

Smith v. City of Salem,

..... 378 F.3d 566 (6th Cir. 2004)....................................................................................... 9, 22

Sommers v. Budget Mktg, Inc.,

..... 667 F.2d 748 (8th Cir. 1982)........................................................................................... 22

Stacks v. Sw. Bell Yellow Pages, Inc.,

..... 27 F.3d 1316 (8th Cir. 1994)........................................................................................... 15

Terveer v. Billington,

..... 34 F. Supp. 3d 100 (D.D.C. 2014).......................................................................... 10, 11

Tetro v. Elliott Popham Pontiac, Oldsmobile, Buick, & GMC Trucks, Inc.,

..... 173 F.3d 988 (6th Cir. 1999)........................................................................................... 15

Videckis v. Pepperdine Univ.,

..... 150 F. Supp. 3d 1151 (C.D. Cal. 2015)..................................................... 10, 17, 18, 20

Whidbee v. Garzarelli Food Specialties, Inc.,

..... 223 F.3d 62 (2d Cir. 2000)............................................................................................... 15

Williams v. Owens-Illinois, Inc.,

..... 665 F.2d 918 (9th Cir. 1982)........................................................................................... 15

Williamson v. A.G. Edwards & Sons,

..... 876 F.2d 69 (1989) (per curiam)........................................................ 2, 6, 21, 22, 23, 25

Young v. Hayes,

..... 218 F.3d 850 (8th Cir. 2000)....................................................................................... 7, 21

Statutes

Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17........ passim

42 U.S.C. § 2000e-2(a)(1).................................................................................... 2, 6, 7, 16

42 U.S.C. § 2000e-2(e)(1)................................................................................................. 16

42 U.S.C. § 2000e-3(a)....................................................................................................... 23

Rules and Regulations

Fed. R. App. P. 29(a)................................................................................................................. 1

Other Authorities

EEOC Publication, “Sex-Based Discrimination,” available at

..... https://www.eeoc.gov/laws/types/sex.cfm................................................................ 5

EEOC Publication, “What You Should Know about EEOC and the Enforcement Protections for LGBT Workers,” available at http://www.eeoc.gov/eeoc/newsroom/wysk/enforcement_protections_lgbt_workers.cfm................................................................................................................................................. 25

STATEMENT OF INTEREST

The Equal Employment Opportunity Commission (“EEOC” or “Commission”) is the primary agency charged by Congress with interpreting and enforcing Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. This case addresses whether claims of sexual orientation discrimination are cognizable under Title VII as claims of sex discrimination. The district court held, inter alia, that Terry’s hostile work environment claim necessarily failed because it constituted a claim for sexual orientation discrimination, and “Title VII does not prohibit employment discrimination nor harassment on the basis of sexual orientation.” R.66[1] (Slip op.) at 4-5. This unduly restrictive interpretation of Title VII is contrary to the understanding of an increasing number of courts (as well as the Commission) that sexual orientation discrimination claims necessarily involve illegal sex stereotyping, illegal gender-based associational discrimination, and impermissible consideration of a plaintiff’s sex, placing them squarely within Title VII’s prohibition against discrimination on the basis of sex. In addition, the Commission believes the district court incorrectly assessed Terry’s Title VII retaliation claim. Because the Commission has a strong interest in the proper interpretation of the federal anti-discrimination employment laws, it offers its views to the Court. Fed. R. App. P. 29(a).

STATEMENT OF THE ISSUES [2]

1. Title VII prohibits discrimination against employees “because of … sex.” 42 U.S.C. § 2000e-2(a)(1). Does sexual orientation discrimination, which by definition involves adverse treatment based on sex stereotyping, gender-based associational discrimination, and consideration of an individual’s sex, violate this prohibition?

2. Does this Court’s opinion in Williamson v. A.G. Edwards & Sons, Inc., 876 F.2d 69 (1989) (per curiam), conflict with the Supreme Court’s holding in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), that discrimination based on gender stereotypes violates Title VII?

3. Was Terry’s belief that she was opposing illegal conduct – based on the EEOC’s well-publicized position that Title VII prohibits sexual orientation discrimination and numerous recent federal cases coming to the same conclusion – at least reasonable, such that she was entitled to protection under Title VII from retaliation for her complaint?

STATEMENT OF THE CASE

A. Statement of the Facts.

Plaintiff Angela Terry began working for Defendant EAN Holdings in 2012 as a driver, transporting vehicles at an Enterprise Rent-A-Car in Little Rock, Arkansas. R.2 at 5. From the outset of her employment, Terry was open with co-workers about the fact that she is gay, though she rarely discussed it and mentioned it only in response to inquiries about whether she had a boyfriend. In any event, Terry testified in her deposition that her work colleagues “can probably look at me and tell that I’m gay … [from] just the way that I carry myself and the way I dress.” R.50-1 at 12-13.

In March 2014, Terry was driving a vehicle with a male co-worker, Oliver Williams. Williams told Terry that “he didn’t agree with women dating women.” He then said that she “needed a man like him to fuck [her] and turn [her] back to wanting to date men.” Terry testified that Williams said “the same thing over and over again. ‘I can do this to you. I can fuck you like this.’” Terry told Williams not to talk to her that way, but Williams continued, adding, “[I]f you change your mind, let me know.” R.50-1 at 41-45.

When Terry was next scheduled to drive with Williams several months later, she reported the incident to her supervisor, Regina Thomas. Terry told Thomas that she “didn’t want to go through it again,” and asked not to drive with him. Thomas “shrugged her shoulders” and said “okay, I’ll put you on another trip sheet.” According to Terry, Thomas did not seem concerned, and did not address it further with staff or human resources. R.50-1 at 46-48.

In March 2015, a co-worker told Terry that he heard other drivers commenting that Terry was gay and lived with a woman. Terry understood the comments to mean that they “had a problem with working with me because I’m gay.” Terry said that the comments “bothered me. It bothered me extremely bad.” Terry reported the conversation to Thomas, who responded, “[Y]ou can’t stop people from saying things about you and having an opinion.” R.50-1 at 53-57; R.2 at 4. Terry requested that Thomas address the comment, and Thomas replied, “Well, I guess it is up to you to do what you feel the need to do.” R.2 at 4.

Terry then contacted human resources several times about her complaints. In April 2015, EAN began an investigation. Terry informed the investigating official about the harassment and her belief that Thomas did not address her complaints properly. Terry also made other allegations of racial comments by co-workers. R.50-4. The investigator also spoke to Thomas during the investigation. Terry alleges that Thomas lied about her during this interview in retaliation for Terry’s earlier complaint. R.2. The investigator did not find Terry’s claims to be substantiated, but the branch manager sent a memorandum to employees at Terry’s location reminding them that harassment was unacceptable. The manager also removed Thomas from the location so she could receive more training. R.50-4.

Terry filed suit, alleging that she was subjected to a hostile work environment because of her sexual orientation and that Thomas retaliated against her. R.2. EAN moved for summary judgment, arguing in part that Terry could not make out a Title VII claim because she could not prove that she “belongs to a protected group” and was harassed based on her membership in that group. R.50 at 1. Terry filed a response stating that she was not certain what a “protected group” was, but that she knew Title VII “does prohibit … harassment on the basis of sexual orientation.” Terry attached as an exhibit an EEOC document entitled “Sex-Based Discrimination,” which states that discrimination “against an individual … because of sexual orientation is discrimination because of sex in violation of Title VII.” R.54; see also https://www.eeoc.gov/laws/types/sex.cfm.

B. District Court’s Decision.

The district court granted EAN’s motion as to Terry’s hostile work environment claim. The court ruled that her claim failed because Terry “is not a member of a protected group,” a conclusion the court based on its determination that “Title VII does not prohibit employment discrimination or harassment on the basis of sexual orientation.” R.66 at 4-5 (citing Williamson v. A.G. Edwards & Sons, Inc., 876 F.2d 69, 70 (8th Cir. 1989) (per curiam)).

The court then stated that even if the harassment were understood as “based on her sex,” the claim would fail because she had not shown the harassment was severe or pervasive enough to affect a term, condition, or privilege of employment. Id. at 5. As to Williams’ offensive comment, the court stressed that “prompt and effective action was taken so that a similar incident never happened again.” Id. at 6.

EAN filed a motion to reconsider the summary judgment ruling because it did not address Terry’s retaliation claim. Construing the motion as one for summary judgment on the remaining claim because EAN’s initial motion did not address the retaliation issue, the district court noted that Terry complained about retaliation for objecting to discrimination based on her sexual orientation. The court did not address the standard in the Eighth Circuit for establishing protected opposition. Instead, the court stated simply: “Sexual orientation … is not protected by Title VII.” R.77 at 2 (citing Williamson, 876 F.2d at 70).

ARGUMENT

I. Sexual Orientation Discrimination is Cognizable as Sex Discrimination Under Title VII.

Title VII prohibits employers from discriminating against individuals in employment matters “because of such individual’s … sex.” 42 U.S.C. § 2000e-2(a)(1). The district court relied on a four-paragraph Eighth Circuit decision from 1989 to conclude that this prohibition does not apply to discrimination or harassment based on sexual orientation. R.66 at 4-5 (citing Williamson, 876 F.2d at 70). As explained in further detail below, however, the two cases Williamson relies on in its cursory analysis of the issue – and thus Williamson itself – are no longer good law in light of subsequent Supreme Court decisions to the contrary. See Price Waterhouse v. Hopkins, 490 U.S. 228 (1989);[3] Oncale v. Sundowner Offshore Oil Servs., Inc., 523 U.S. 75 (1998). And although one panel of this Court cannot usually overrule a prior circuit decision, “this rule does not apply when the earlier panel decision is cast into doubt by a decision of the Supreme Court.” Patterson v. Tenet Healthcare, Inc., 113 F.3d 832, 838 (8th Cir. 1997); see also Young v. Hayes, 218 F.3d 850, 853 (8th Cir. 2000) (same); City of Timber Lake v. Cheyenne River Sioux Tribe, 10 F.3d 554, 557 (8th Cir. 1993) (holding that because the “deliberated dicta” in a Supreme Court opinion “undermine[d]” the holding of a prior circuit opinion, that prior opinion did not bind the panel when confronting the same issue).

When the issue is considered in light of Price Waterhouse and Oncale, it becomes clear that discrimination based on sexual orientation necessarily violates Title VII’s prohibition on sex discrimination. This interpretation is most consistent with the statutory language prohibiting discrimination “because of … sex,” 42 U.S.C. § 2000e-2(a), and flows naturally from binding precedent, because sexual orientation discrimination (1) relies on illegal sex stereotyping, (2) constitutes gender-based associational discrimination, and (3) involves impermissible sex-based considerations. For each of these reasons, sexual orientation discrimination is sex discrimination, and sex discrimination violates Title VII.

A. Sexual orientation discrimination necessarily involves sex stereotyping, in violation of Title VII.

Sexual orientation discrimination necessarily involves sex stereotyping, as it results in the adverse treatment of individuals because they do not conform to the norm that men should be attracted only to women, and women only to men. Because such discrimination is at heart based on gender stereotypes, it violates Title VII’s prohibition against discrimination against employees “because of … sex.” Price Waterhouse, 490 U.S. at 240 (citing 42 U.S.C. § 2000e-2(a)(1)). Thus, the district court erred in peremptorily concluding that any claim relating to sexual orientation must fall outside the protection of Title VII.

Price Waterhouse involved a woman perceived by her employer to be insufficiently feminine. Six justices agreed that comments the defendant’s representatives made about the plaintiff – that she was “macho” and “overcompensat[ing] for being a woman,” and would have better chances of partnership at the firm if she would “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry” – indicated discrimination based on sex stereotypes that is illegal under Title VII. Price Waterhouse, 490 U.S. at 235, 251. As the Court held, “[W]e are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group.” Id. at 251. This conclusion followed from the Court’s earlier recognition that Congress passed Title VII “to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.” Id. (quoting L.A. Dep’t of Water & Power v. Manhart, 435 U.S. 702, 707 n.13 (1978)).

Many circuits, including this one, have relied on Price Waterhouse in concluding that employers violate Title VII’s prohibition against sex discrimination when they discriminate against employees for failing to conform to gender-based stereotypes by acting in an effeminate or masculine manner or by wearing gender-nonconforming clothing. See Lewis v. Heartland Inns of Am., L.L.C., 591 F.3d 1033, 1039 (8th Cir. 2010) (holding that “an adverse employment decision based on gender non-conforming behavior and appearance is impermissible under Price Waterhouse” (citation omitted)); Glenn v. Brumby, 663 F.3d 1312, 1317 (11th Cir. 2011) (summarizing cases and concluding that “instances of discrimination against plaintiffs because they fail to act according to socially prescribed gender roles constitute discrimination under Title VII according to the rationale of Price Waterhouse”); Nichols v. Azteca Rest. Enters., Inc., 256 F.3d 864, 874 (9th Cir. 2001) (“[T]he holding in Price Waterhouse applies with equal force to a man who is discriminated against for acting too feminine. … At its essence, the systematic abuse directed at [the plaintiff] reflected a belief that [he] did not act as a man should act.”); EEOC v. Boh Bros. Constr. Co., 731 F.3d 444, 459-60 (5th Cir. 2013) (en banc) (holding that liability was warranted under Title VII if a jury concluded harassment occurred because the victim “fell outside of [the harasser’s] manly-man stereotype”); Smith v. City of Salem, 378 F.3d 566, 574 (6th Cir. 2004) (“After Price Waterhouse, an employer who discriminates against women because, for instance, they do not wear dresses or makeup, is engaging in sex discrimination because the discrimination would not occur but for the victim’s sex. It follows that employers who discriminate against men because they do wear dresses and makeup, or otherwise act femininely, are also engaging in sex discrimination, because the discrimination would not occur but for the victim’s sex.”); Doe v. City of Belleville, 119 F.3d 563, 580 (7th Cir. 1997) (“Title VII does not permit an employee to be treated adversely because his or her appearance or conduct does not conform to stereotypical gender roles.”), vacated and remanded on other grounds, 523 U.S. 1001 (1998).

Along these same lines, an increasing number of district courts have recognized that an employer who discriminates because of an employee’s homosexuality necessarily discriminates because of that employee’s failure to conform to a gender-based stereotype: the stereotype of opposite-sex attraction. See, e.g., EEOC v. Scott Med. Health Ctr., P.C., --- F. Supp. 3d ---, 2016 WL 6569233, at *7 (W.D. Pa. 2016) (“[D]iscrimination on the basis of sexual orientation is a subset of sexual stereotyping and thus covered by Title VII’s prohibitions on discrimination ‘because of sex’ ….”); Videckis v. Pepperdine Univ., 150 F. Supp. 3d 1151, 1160 (C.D. Cal. 2015) (“Stereotypes about lesbianism, and sexuality in general, stem from a person’s views about the proper roles of men and women – and the relationships between them. Discrimination based on a perceived failure to conform to a stereotype constitutes actionable discrimination ….”);[4] Terveer v. Billington, 34 F. Supp. 3d 100, 116 (D.D.C. 2014) (finding that a homosexual plaintiff’s allegations that he was denied promotions and subjected to a hostile work environment because his sexual orientation “did not conform to the Defendant’s gender stereotypes associated with men” stated a sufficient claim to survive a motion to dismiss). Intentional discrimination on the basis of the gender of an individual’s preferred partners – whether that individual is lesbian, gay, bisexual, or straight – necessarily implicates stereotypes relating to “proper” sex-specific roles in romantic and/or sexual relationships. Even if the employee exhibits no other gender-nonconformity, when his or her sexual orientation gives rise to discrimination, that discrimination violates Title VII. See Centola v. Potter, 183 F. Supp. 2d 403, 410 (D. Mass. 2002) (“Conceivably, a plaintiff who is perceived by his harassers as stereotypically masculine in every way except for his actual or perceived sexual orientation could maintain a Title VII cause of action alleging sexual harassment because of his sex due to his failure to conform with sexual stereotypes about what ‘real’ men do or don’t do.”); Heller v. Columbia Edgewater Country Club, 195 F. Supp. 2d 1212, 1222-24 (D. Or. 2002) (“[A] jury could find that Cagle repeatedly harassed (and ultimately discharged) Heller because Heller did not conform to Cagle’s stereotype of how a woman ought to behave. Heller is attracted to and dates other women, whereas Cagle believes that a woman should be attracted to and date only men. … That Cagle perceived Heller as being a lesbian does not compel a different outcome.”); Terveer, 34 F. Supp. 3d at 116 (holding that a complaint alleging the plaintiff’s “sexual orientation is not consistent with the Defendant’s perception of acceptable gender roles” stated a valid claim of sex discrimination); see also Hively v. Ivy Tech. Cmty. Coll., 830 F.3d 698, 705 (7th Cir. 2016) (noting that “almost all discrimination” based on sexual orientation “can be traced back to some form of discrimination on the basis of gender nonconformity”), petition for reh’g en banc granted and opinion vacated, 2016 WL 6768628 (Oct. 11, 2016); see generally Latta v. Otter, 771 F.3d 456, 486 (9th Cir. 2014) (Berzon, J., concurring) (“The notion underlying the Supreme Court’s anti-stereotyping doctrine in both Fourteenth Amendment and Title VII cases is simple, but compelling: ‘[n]obody should be forced into a predetermined role on account of sex,’ or punished for failing to conform to prescriptive expectations of what behavior is appropriate for one’s gender.”).

The fact that Congress may not have considered whether sexual orientation discrimination was prohibited under Title VII when it initially enacted the statute is of little moment. In the years since Title VII’s enactment, the Supreme Court has repeatedly cautioned that analysis of the statute does not end with consideration of Congress’s initial intent. Instead, the Court explained, “[S]tatutory prohibitions often go beyond the principal evil [they were passed to combat] to cover reasonably comparable evils.” Oncale, 523 U.S. at 79-80; see also Boh Bros., 731 F.3d at 454 (citing Oncale). Thus, the Court has recognized, for example, that the statute’s prohibition against discrimination in the terms and conditions of employment encompasses sexual harassment of an employee, see Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 66 (1986), and that the term “because of … sex” can include same-sex harassment, see Oncale, 523 U.S. at 79-80, though Congress likely considered neither issue when it initially passed the law. As the Court summarized its holding in Oncale, “[I]t is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” Id. at 79.

The district court did not assess Terry’s claim under the Price Waterhouse gender-stereotyping rubric. Instead, it concluded without further analysis that Terry had not made out the first part of her prima facie case of discrimination because “she is not a member of a protected group.” R.66 at 4. But as Price Waterhouse makes clear, Title VII’s prohibition against sex discrimination applies to all employees discriminated against on the basis of a sex-based stereotype. Price Waterhouse, 490 U.S. at 251. This Court made a similar point in explaining that the first factor of a prima facie case of sex discrimination under Title VII, “membership in a protected group, is satisfied by showing that the plaintiff employee is a man or a woman.” Quick v. Donaldson Co., 90 F.3d 1372, 1377 (8th Cir. 1996). The proper inquiry under a sex-stereotyping theory is thus not whether lesbians are a protected group under the statute, but rather whether the alleged discrimination was based on Terry’s failure to conform with a gender-based stereotype. See Lewis, 591 F.3d at 1039.

The district court’s dismissal of Terry’s claim based on its conclusion that “she [was] not a member of a protected group” essentially carves out an exception to Title VII’s protection against gender stereotypes for plaintiffs who identify as gay or lesbian. Under the court’s analysis, Terry would have no Title VII claim for a harassing environment in which a co-worker sat with her in an enclosed space and repeatedly told her, over her protests, that she “needed a man like him to fuck [her] and turn [her] back to wanting to date men” and that he “can fuck [her] like this” – behavior that would clearly give rise to a Title VII claim if she were heterosexual – solely because she identifies as a lesbian. R.50-1 at 41-45; cf. Rowe v. Hussmann Corp., 381 F.3d 775, 777-78, 783 (8th Cir. 2004) (holding that the facts, including a co-worker’s repeated vulgar sexual propositions, supported a jury verdict for plaintiff on her claim of sexual harassment); Hall v. Gus Constr. Co., 842 F.2d 1010, 1012, 1015 (8th Cir. 1988) (holding that coworker abuse, including repeatedly requesting oral sex and asking one plaintiff whether she “wanted to fuck,” supported verdict in plaintiffs’ favor on sexual harassment claim). There is no legal or logical basis for such a carve-out, and the district court did not provide one. Its conclusion therefore constitutes reversible error. R.66 at 4.

B. Sexual orientation discrimination constitutes associational discrimination that violates Title VII.

Sexual orientation discrimination also violates Title VII’s prohibition against sex discrimination because it treats individuals differently based on the sex of those with whom they associate. Just as discrimination against individuals based on the race of their partners and friends constitutes a violation of Title VII, discrimination against an employee based on the sex of those with whom she associates similarly violates the statute. Such associational discrimination necessarily, and illegally, takes into account the employee’s sex, in violation of Title VII. See Price Waterhouse, 490 U.S. at 243.

In Parr v. Woodmen of the World Life Insurance Co., 791 F.2d 888 (11th Cir. 1986), a white man alleged the defendant did not hire him because he was married to a black woman. The court held that the plaintiff had stated a valid claim for discrimination in violation of Title VII because, “[w]here a plaintiff claims discrimination based upon an interracial marriage or association, he alleges, by definition, that he has been discriminated against because of his race.” Id. at 892. A panoply of cases from other circuits, involving a range of interracial associational relationships, have likewise concluded that such claims for association-based discrimination are cognizable under Title VII. See, e.g., Stacks v. Sw. Bell Yellow Pages, Inc., 27 F.3d 1316, 1327 n.6 (8th Cir. 1994) (interracial working relationship); Holcomb v. Iona Coll., 521 F.3d 130, 139 (2d Cir. 2008) (interracial marriage); Tetro v. Elliott Popham Pontiac, Oldsmobile, Buick, & GMC Trucks, Inc., 173 F.3d 988, 994-95 (6th Cir. 1999) (having a biracial child); Deffenbaugh-Williams v. Wal-Mart Stores, 156 F.3d 581, 589 (5th Cir. 1998) (interracial dating), vacated in part on other grounds in Deffenbaugh Williams v. Wal-Mart Stores, Inc., 182 F.3d 333 (5th Cir. 1999) (en banc); Floyd v. Amite Cty. Sch. Dist., 581 F.3d 244, 249 (5th Cir. 2009) (interracial teacher-student friendship); McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1118 (9th Cir. 2004) (interracial friendships or associations among coworkers).

As courts routinely recognize, the same analysis that applies to race-based discrimination under Title VII also applies to claims of sex discrimination. See Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 69 n.2 (2d Cir. 2000) (“[T]he same standards apply to both race-based and sex-based hostile environment claims.” (internal citation omitted)); Williams v. Owens-Illinois, Inc., 665 F.2d 918, 929 (9th Cir. 1982) (“Under [Title VII] the standard for proving sex discrimination and race discrimination is the same.”); Horace v. City of Pontiac, 624 F.2d 765, 768 (6th Cir. 1980) (holding that standards and orders of proof used in race discrimination cases “are generally applicable to cases of sex discrimination”). The Supreme Court has observed that Title VII “on its face treats each of the enumerated categories” – race, color, religion, sex and national origin – “exactly the same.” Price Waterhouse, 490 U.S. at 243 n.9; see id. (noting that even though the case involved sex discrimination, its analysis “appl[ied] with equal force to discrimination based on race, religion, or national origin”). Other than the statutory exception for bona fide occupational qualifications, 42 U.S.C. § 2000e-2(e)(1), there is no basis in the legislative history or elsewhere for applying different criteria when analyzing claims of discrimination based on race and those based on sex. Thus, the analysis of race-based associational discrimination described above should apply with equal force to claims of sex-based associational discrimination. See Hively, 830 F.3d at 715-16 (pointing out the “inconsistency” in interpreting Title VII to prohibit race association claims but not sex association claims). If a plaintiff is in a relationship with someone of the same sex, and an adverse employment consequence results from that relationship, discrimination has occurred “because of [the plaintiff’s] … sex,” in violation of Title VII. 42 U.S.C. § 2000e-2(a).

Because Title VII forbids associational discrimination based on sex, sexual orientation discrimination clearly falls within the statute’s ambit. Here, a jury could have found that Terry would not have been harassed had she been in a relationship with a man but the same in all other respects. Dismissal on summary judgment was therefore reversible error.

C. Sexual orientation discrimination is, by definition, discrimination “because of … sex,” in violation of Title VII.

More generally, sexual orientation discrimination is also inherently sex-based discrimination because sexual orientation cannot be understood without reference to an individual’s sex (in conjunction with the sex of those to whom the individual is physically and/or emotionally attracted). See Boutillier v. Hartford Pub. Schs., --- F. Supp. 3d ---, 2016 WL 6818348, at *8 (D. Conn. 2016) (“[S]traightforward statutory interpretation and logic dictate that sexual orientation cannot be extricated from sex; the two are necessarily intertwined in a manner that, when viewed under the Title VII paradigm set forth by the Supreme Court, place[s] sexual orientation discrimination within the penumbra of sex discrimination.”); Videckis, 151 F. Supp. 3d at 1159 (“[T]he distinction [between sex discrimination and sexual orientation discrimination] is illusory and artificial, and … sexual orientation discrimination is not a category distinct from sex or gender discrimination.”); Baldwin v. Foxx, EEOC Appeal No. 0120133080, 2015 WL 4397641, at *5 (EEOC July 15, 2015) (“[S]exual orientation is inseparable from and inescapably linked to sex and, therefore, … allegations of sexual orientation discrimination involve sex-based considerations.”).

In passing Title VII, Congress made the “simple but momentous announcement” that sex, like other protected characteristics, is “not relevant” to employment decisions; thus, in making such decisions, employers “may not take gender into account.”[5] Price Waterhouse, 490 U.S. at 239, 242. Contrary to this clear proscription, discrimination based on sexual orientation requires an employer to consider “sex-based preferences, assumptions, expectations, stereotypes, or norms” in determining how to treat its employees. Baldwin, 2015 WL 4397641, at *5; see also Centola, 183 F. Supp. 2d at 410 (“[S]tereotypes about homosexuality are directly related to our stereotypes about the proper roles of men and women.”). An employer therefore cannot discriminate against an employee based on that employee’s sexual orientation without taking the employee’s sex into account. Isaacs v. Felder Servs., LLC, 143 F. Supp. 3d 1190, 1193 (M.D. Ala. 2015); Baldwin, 2015 WL 4397641, at *5.

The district court stated without additional analysis that Title VII does not protect against sexual orientation discrimination, implicitly differentiating it from sex discrimination. R.66 at 4-5. But treatment of sexual orientation discrimination as distinct from sex discrimination is untenable and based on a fundamentally flawed premise. As the court recently explained in Videckis, “It is impossible to categorically separate ‘sexual orientation discrimination’ from discrimination on the basis of sex or from gender stereotypes; to do so would result in a false choice. Simply put, to allege discrimination on the basis of sexuality is to state a … claim on the basis of sex or gender.” Videckis, 150 F. Supp. 3d at 1160; see also Boutillier, --- F. Supp. 3d ---, 2016 WL 6818348, at *8 (noting that “sexual orientation cannot be extricated from sex”).

If an employer treats an employee less favorably than it would treat a comparable employee who, aside from his or her sex, is identical in all respects (including, for example, the sex of that employee’s spouse), the employer discriminates against the employee “because of sex.” See Manhart, 435 U.S. at 711 (employing “the simple test of whether the evidence shows treatment of a person in a manner which but for that person’s sex would be different” to determine whether a sex-based violation of Title VII occurred (internal citation and quotation marks omitted)); see also Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 682-83 (1983) (applying Manhart’s “simple test of Title VII discrimination”); Baldwin, 2015 WL 4397641, at *5 (noting that an employer who fires a lesbian employee but not a male employee for displaying a photo of a female spouse at work would violate Title VII under Manhart by impermissibly taking the employee’s sex into account).

Several courts have already taken this approach to sexual orientation discrimination cases, rejecting the distinction between discrimination based on sexual orientation and sex discrimination more generally. In Hall v. BNSF Railway Co., the court held that a plaintiff, a man married to another man, successfully alleged sex discrimination under Title VII when he was denied a spousal health benefit available to similarly situated women married to men. 2014 WL 4719007, at *3 (W.D. Wash. Sept. 22, 2014). The court in Heller explained that a woman claiming sexual harassment could prove her claim if she could show that her manager would have treated her differently if she were a man dating a woman instead of a woman dating a woman. 105 F. Supp. 2d at 1223. In Videckis, the court explained, “If Plaintiffs had been males dating females, instead of females dating females, they would not have been subjected to the alleged different treatment,” and therefore concluded that they “have stated a straightforward claim of sex discrimination.” Videckis, 150 F. Supp. 3d at 1161. The court in Boutillier similarly concluded that employment discrimination based on sexual orientation necessarily requires consideration of “both the sex of the partner and the sex of the individual,” and such consideration constitutes sex discrimination in violation of Title VII under the test enunciated in Newport News. Boutillier, --- F. Supp. 3d ---, 2016 WL 6818348, at *9. Again, to the extent the conduct to which Terry was subjected would give rise to a heterosexual woman’s harassment claim, denying her protection based on the gender of her girlfriend impermissibly discriminates on the basis of sex.

Such consideration of sex constitutes sex discrimination even though an employer discriminating on the basis of sexual orientation does not discriminate against all men or women, but only against those who are gay or lesbian. Title VII has never required an employer to discriminate against all employees in a protected class before recognizing an individual employee’s claim. See Connecticut v. Teal, 457 U.S. 440, 455 (1982) (“It is clear that Congress never intended to give an employer license to discriminate against some employees on the basis of … sex merely because [it] favorably treats other members of the employees’ group.”).

D. Williamson is no longer good law and does not bind this Court.

As noted above, the district court relied entirely on Williamson for its conclusion that Title VII does not protect employees from discrimination based on their sexual orientation. R.66 at 4-5. A closer look at Williamson, however, reveals that it is no longer good law. This Court should recognize that Williamson has been abrogated. See Patterson, 113 F.3d at 838; Young, 218 F.3d at 853; City of Timber Lake, 10 F.3d at 557.

Williamson involved a plaintiff who sued his former employer and supervisor for discrimination after his termination. He claimed he was discriminated against because of his race, but the district court granted summary judgment to the defendants after concluding he was really complaining about discrimination based on his homosexuality. This Court affirmed in a four-paragraph per curiam opinion, holding without additional analysis, “Title VII does not prohibit discrimination against homosexuals.” 876 F.2d at 70.

In support of this conclusion the Court primarily relied on DeSantis v. Pacific Telephone & Telegraph Co., 608 F.2d 327 (9th Cir. 1979). As the Ninth Circuit has recognized, however, DeSantis “predates and conflicts with” Price Waterhouse’s rule barring discrimination based on sex stereotypes and is therefore “no longer good law.” Nichols, 256 F.3d at 875 (“[I]n this direct conflict, DeSantis must lose.”). Williamson also cites Sommers v. Budget Marketing, Inc., 667 F.2d 748 (8th Cir. 1982), but that case has been similarly discredited. In Sommers, this Court denied protection under Title VII to a transgender woman, concluding that the statute’s use of the term “sex” was not to be given “an expansive interpretation,” and that transgender status did not fall within its coverage. 667 F.2d at 750. Subsequently, however, Price Waterhouse “eviscerated” Sommers through its holding that “Title VII’s reference to ‘sex’ encompasses both the biological differences between men and women, and gender discrimination, that is, discrimination based on a failure to conform to stereotypical gender norms.” Smith v. City of Salem, 378 F.3d 566, 573 (6th Cir. 2004); Glenn, 663 F.3d at 1318 n.5 (quoting Smith). This recognized evisceration of Sommers further underscores Williamson’s lack of continuing validity.

In addition, this Court itself has recognized the obsolescence of Williamson in light of the Supreme Court’s Oncale decision. In Schmedding v. Tnemec Co., 187 F.3d 862 (8th Cir. 1999), the only Eighth Circuit case to date to cite Williamson, a male plaintiff claimed he had been harassed at his workplace with sexualized taunts and touching, based in part on his “perceived sexual preference.” Id. at 865. This Court held that the complaint sufficiently stated a claim that the plaintiff “was being harassed ‘because of sex.’” Id. at 865. The Court recognized that, in erroneously dismissing the complaint, the district court relied on Williamson for the proposition that “harassment based on sexual orientation was not cognizable under Title VII,” but it observed that Williamson was “a pre-Oncale case.” Id. at 864 n.3. In discounting Williamson’s precedential force based on subsequent Supreme Court authority, the Court recognized its obsolescence. This court should make Williamson’s abrogation explicit.[6]

II. The District Court Erred in Dismissing Terry’s Retaliation Claim on the Ground that Her Complaint of Sexual Orientation Discrimination was Not Protected Conduct.

Title VII prohibits employers from retaliating against any employee who “has opposed any practice made an unlawful employment practice by this subchapter.” 42 U.S.C. § 2000e-3(a). There is no dispute that Terry “opposed” an employment practice. The district court nevertheless dismissed her retaliation claim based on its conclusion that her complaint concerned “discrimination based on her sexual orientation,” which “is not protected by Title VII.” R.77 at 2. For the reasons discussed above, however, sexual orientation discrimination is unlawful under Title VII.

Even if this Court disagrees that sexual orientation discrimination is covered by Title VII, the validity of Terry’s complaint is not the proper inquiry when evaluating a Title VII retaliation claim. Instead, this Court “applies § 2000e-3(a) broadly to cover opposition to employment actions that are not unlawful, as long as the employee acted in a good faith, objectively reasonable belief that the practices were unlawful.” Pye v. Nu Aire, Inc., 641 F.3d 1011, 1020 (8th Cir. 2011); see also Brannum v. Mo. Dep’t of Corr., 518 F.3d 542, 547 (8th Cir. 2008) (holding that a plaintiff “need not establish that the conduct he opposed was in fact prohibited under Title VII” to be entitled to statutory protection); Buettner v. Arch Coal Sales Co., 216 F.3d 707, 714 (8th Cir. 2000) (“A plaintiff need not establish the conduct which she opposed was in fact discriminatory but rather must demonstrate a good faith, reasonable belief that the underlying challenged conduct violated [Title VII].”). The question governing her retaliation claim, then, is not whether she can ultimately prevail in court on the claim that gave rise to the retaliation, but instead whether a jury could find that her opposition was objectively reasonable and made in good faith. Pye, 641 F.3d at 1020.

Terry’s internal complaints clearly meet that standard. She had an honest belief that discrimination against her based on her sexual orientation violated Title VII, and that her complaint about that discrimination constituted opposition to an unlawful employment practice. This belief is objectively reasonable in light of the current state of the law. The publicly available EEOC guidance states that “[d]iscrimination against an individual … because of sexual orientation is discrimination because of sex in violation of Title VII.” R.54 at 2. This guidance, based on Price Waterhouse and Oncale, follows the Commission’s position in Baldwin and echoes the conclusion of an increasing number of courts (as described above). At the very least, an employee – particularly one proceeding pro se – who makes a complaint based on a growing body of federal case law and guidance from the EEOC acts reasonably and in good faith.[7] This is true even if the court ultimately determines her legal theory is mistaken. See, e.g., Dawson v. Entek Int’l, 639 F.3d 928, 936 (9th Cir. 2011) (“Title VII prohibits an employer from discriminating against an employee for opposing an unlawful employment practice, such as filing a complaint alleging sexual orientation harassment and hostile work environment.”); Bakhtiari v. Lutz, 507 F.3d 1132, 1137 (8th Cir. 2007) (“[A] plaintiff employee need not establish that the conduct he opposed was in fact prohibited under Title VII ….”). Even if Williamson were still good law – and it is not – the case does not support the district court’s mistaken conclusion that, as a matter of law, Terry’s complaint was not “protected activity” because “[s]exual orientation … is not protected by Title VII.” R.77 at 2.

In addition, the district court erred to the extent it held she could not have had a good faith, objectively reasonable belief that she had experienced sexual harassment. As described above, she was confined in a small space with a co-worker who sexually propositioned her in exceptionally graphic terms. Such a complaint would have been fully justified coming from a heterosexual employee; there is no justification for considering the complaint somehow unreasonable simply because the victim is a lesbian.

CONCLUSION

For the foregoing reasons, the judgment of the district court should be reversed and the case remanded for further proceedings.

Respectfully submitted,

JAMES L. LEE

Deputy General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

ANNE NOEL OCCHIALINO

Senior Appellate Attorney

/s/ Jeremy D. Horowitz

JEREMY D. HOROWITZ

Attorney

U.S. Equal Employment

Opportunity Commission

Office of General Counsel

131 M St. N.E., Room 5SW24J

Washington, D.C. 20507

(202) 663-4716

jeremy.horowitz@eeoc.gov

CERTIFICATE OF COMPLIANCE

I hereby certify that this brief complies with the type-volume requirements set forth in Federal Rules of Appellate Procedure Rules 29(d) and 32(a)(7)(B). This brief contains 6,489 words, from the Statement of Interest through the Conclusion, as determined by the Microsoft Word 2010 word processing program, with 14-point proportionally spaced type for text and footnotes.

/s/ Jeremy D. Horowitz

JEREMY D. HOROWITZ

Attorney

U.S. Equal Employment

Opportunity Commission

Office of General Counsel

131 M St. N.E., Room 5SW24J

Washington, D.C. 20507

(202) 663-4716

jeremy.horowitz@eeoc.gov

Dated: March 21, 2017

[1] As used in this brief, “R.” refers to the district court docket entry.

[2] The EEOC takes no position on any other issue in this appeal.

[3] Although Williamson came down a month after Price Waterhouse was announced, all briefing was concluded before the Supreme Court issued its Price Waterhouse decision, the opinion does not mention Price Waterhouse, and there is no indication the panel considered the case’s potential impact on its decision.

[4] Videckis is a Title IX case, but the court stressed that the same analysis applies to claims under Title IX and Title VII. Videckis, 150 F. Supp. 3d at 1158.

[5] The Court noted the bona fide occupational qualification exception to this rule, but the exception does not apply in this case. Price Waterhouse, 490 U.S. at 242.

[6] As explained in the text, Williamson and the cases it relies on irreconcilably conflict with the Supreme Court and are no longer good law. To the extent this Court still believes the case retains validity, however, the EEOC urges the Court to overrule it en banc. See Evans v. Ga. Reg’l Hosp., --- F.3d ---, 2017 WL 943925, at *18 (11th Cir. 2017) (Rosenbaum, J., dissenting) (“Blum’s failure to account for prescriptive-stereotyping theory in its ‘analysis’ demands reexamination after Price Waterhouse. For this reason, since the panel concludes that Blum continues to bind us even after Price Waterhouse, we should rehear this case en banc on this issue.”).

[7] The EEOC received 1,181 charges of sexual orientation discrimination in 2015 alone, further underscoring the reasonableness of Terry’s actions. See EEOC Publication, “What You Should Know about EEOC and the Enforcement Protections for LGBT Workers,” available at http://www.eeoc.gov/eeoc/newsroom/wysk/enforcement_protections_lgbt_workers.cfm.